R. v. Stone, 2013 ONCJ 490

Information No. 12-2485 Citation: R. v. Stone , 2013 ONCJ 490 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. ROBERT STONE R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE M. HORNBLOWER on Thursday, August 29, 2013, at SARNIA, Ontario

APPEARANCES : S. Lasha Counsel for the Crown J. Guggisberg Counsel for Robert Stone ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S REASONS FOR SENTENCE 3

THURSDAY, AUGUST 29, 2013 R E A S O N S F O R S E N T E N C E HORNBLOWER, M. (Orally): Robert Stone entered a plea of guilty to an offence of impaired driving and to an offence of failing to provide a breath sample. At thetime of the plea, the Crown filed a Notice of Application for Increased Penalty as well as a prior driving record being a Ministry ofTransportation record. That record reflects convictions for impaired driving and drive while suspended in addition to other drivingoffences committed over a period of years between 1977 and 2001.

After the pleas were entered, the matter went over for the preparation of a Pre-Sentence Report as well as a Gladue report. Argument onsentence proceeded before me on June 6, 2013 at which time the matter was adjourned for decision. The Crown’s position on sentenceat that time was and remains that there be a period of incarceration. The range sought by the Crown is between six and nine months.

The defence position at that point was what I would characterize as a reluctant acknowledgement that while the Notice requires theimposition of a minimum period of incarceration namely four months, and that the Court is bound by R. v. Gill, that nonetheless aconditional sentence or a period of incarceration in the intermittent range would be more appropriate.

Prior to the matter returning to the Court for decision, counsel were advised of the decision of the Newfoundland Court of Appeal, R. v.Anderson that touched on the issue of the Crown’s exercise of discretion in relying upon a Notice of Application for Increased Penalty incircumstances such as this where the offender is an Aboriginal and the record is such that it allows the Crown to exercise its discretion asto whether to file the Notice or not. Anderson deals with the circumstances where the reliance on the notice can be seen as a violation of

Section 7 of the Charter of Rights. Given the decision in Anderson, this argument has now proceeded before me essentially as an Application for Charter Relief on oralmotion without notice on the basis of a violation of

Section 7 of the Charter of Rights, seeking to set aside that Notice. The issue before me is the extent to which the Crown must consider the Gladue principles in exercising its discretion to rely upon theNotice of Application for Increased Penalty and if the failure to take proper account of those principles is a violation of

Section 7 of theCharter of Rights. The following cases are relied upon in consideration of that issue: Regina v. Gladue, (SCC), [1999] 1 S.C.R. 688 Regina v. Kakekegamic, [2006] 81 O.R. (3rd) 664 Regina v. Gill, [2012] O.N.C.A. 607 Regina v. Anderson, [2013] N.L.C.A. 2 United States v. Leonard, 2012 [O.N.C.A.] 622 By virtue of

Section 718.2 of the Criminal Code, a court on imposing sentence, is to consider a number of principles including thefollowing: “All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for alloffenders with particular attention to the circumstances of aboriginal offenders”. That

section is now embodied in what are simplyreferred to as the Gladue Principles. In R. v. Gladue, the Supreme Court developed a framework for the sentencing of Aboriginal offenders, a framework that requires a court

to consider background and systemic factors. At paragraph 83 of that decision the Court stated as follows: How then is the consideration of s. 718.2 (

e) to proceed in the daily functioning of the courts? The manner in which the sentencing judge will carry out his or her statutory duty may vary from case to case. In all instances it will be necessary for the judge to take judicial notice of the systemic or background factors and the approach to sentencing which is relevant to aboriginal offenders. However, for each particular offence and offender it may be that some evidence will be required in order to assist the sentencing judge in arriving at a fit sentence.

Where a particular offender does not wish such evidence to be adduced, the right to have particular attention paid to his or her circumstances as an aboriginal offender may be waived. Where there is no such waiver, it will be extremely helpful to the sentencing judge for counsel on both sides to adduce relevant evidence. Indeed, it is to be expected that counsel will fulfil their role and assist the sentencing judge in this way. It is significant that the Court emphasized the need for some evidence of the existence of and the impact of the background and systemic factors relevant to a particular accused.

While an accused may waive their right to have such evidence placed before the Court, leaving the Court with only those background and systemic factors of which it can take judicial notice, in all other cases the Court imposed a duty on both Crown counsel and defence counsel to adduce evidence of the impact unique to the offender. In Kakekegamic , the Ontario Court of Appeal considered the sufficiency of the trial court’s consideration of the Gladue principles in sentencing an Aboriginal offender.

Kakekegamic holds that the proper application of the Gladue principles requires more than the simple knowledge that an offender is an Aboriginal and that there are background and systemic factors of which a court can take judicial notice. Absent an express waiver, the circumstances of the offender must be explored. Justice LaForme stated in this regard as follows: The sentencing judge therefore has a statutory duty to consider the unique circumstances of Aboriginal offenders; the only discretion is with respect to the determination of just and appropriate sentences ( Gladue , paragraph 82 ).

To fulfil their duty, sentencing judges must undertake the sentencing of Aboriginal offenders individually, as with all offenders, but also differently, because the circumstances of Aboriginal people are unique and call for a special approach. Gladue establishes the framework by which a sentencing judge is to carry out his or her duty when determining a truly fit and proper sentence for Aboriginal offenders. The background considerations underlying the unique circumstances of Aboriginal offenders, which will direct the sentencing judge’s analysis, are: (

A) The unique systemic or background factors which may have played a

part in bringing the particular aboriginal before the courts; and (

B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. The unique circumstances of each individual offender are generally explored through the preparation of a Pre-Sentence Report, the calling of evidence or the preparation of what is now known as a Gladue Report. The knowledge of that information is essential for the proper application of the Gladue principles. In the absence of that information, the principles are simply applied in a vacuum.

The decision by the Crown to rely on a Notice of Application for Increased Penalty was considered by the Ontario Court of Appeal in R. v. Gill . The Court held that the decision by the Crown to rely on a Notice of Increased Penalty is not a core element of prosecutorial discretion and is not reviewable on a reasonableness standard. The Court went on to hold however, that the decision by the prosecutor to prove the Notice does have a direct bearing on the liberty interest of an accused under

Section 7 of the Charter . As such, the prosecutor’s discretion must be exercised in a manner that is consistent with the principles of fundamental justice. A trial judge can review the prosecutor’s exercise of discretion to determine whether it offends the principles of fundamental justice and therefore violates Secton 7.

From paragraphs 59 to 62 of that decision, the Court stated as follows: The principles of fundamental justice refer to those legal principles that are basic to, and vital to, our notion of criminal justice: Rodriguez v. British Columbia (Attorney General) (SCC), [1993] 3 S.C.R. 519, at paragraphs 141-146; Mohla, atparagraph 175. The applicable principles of fundamental justice will depend on the context. A prosecutor’s decision to prove the Noticewill run contrary to these principles of fundamental justice and, therefore, violate an accused’s

Section 7 rights if it: • undermines the integrity of the administration of justice; • operates in the a manner that renders the sentencing proceedings fundamentally unfair; • is arbitrary; or • results in a limit on the accused's liberty that is grossly disproportionate to the state interest in proving the Notice. Although the decision to prove the Notice is not an exercise of core prosecutorial discretion, the exercise of that discretion is subject toreview under the abuse of process doctrine.

A decision to prove the Notice that constitutes an abuse of process will result in aninfringement of the liberty interest of an accused that is contrary to the principles of fundamental justice. Abuse of process in the context of challenges to the exercise of prosecutorial discretion refers to decisions that either undermine the integrity of the criminal justice system in a broad sense, or fundamentally impair the fairness of the specific proceedings.

I need notattempt a more exact description of the first category of abuse of process as it is not suggested that the Crown’s decision to prove theNotice in this case could somehow undermine the integrity of the criminal justice system. The second category of abuse of process looks at the impact of the exercise of the prosecutorial discretion on the right to a fair trial. That right extends to the sentencing process. Fairness is generally assured by compliance with the applicable procedural and evidentiary rules.

Section 7 remainsavailable, however, if despite compliance with those rules, the proceeding is rendered fundamentally unfair to an accused as a result ofchallenged prosecutorial conduct. R. v. Albright, (SCC), [1987] 2 S.C.R. 383, at pp. 395-396. The decision in Gill was considered by the Newfoundland Court of Appeal in R. v. Anderson.

Although coming to a different conclusionwith respect to whether the exercise of discretion in relying upon the Notice is an exercise of core prosecutorial discretion, the Court didadopt Justice Doherty’s analysis outlined above, regarding the requirement that the Crown’s discretion be exercised in a mannerconsistent with the principles of fundamental justice. After discussing the arbitrariness aspect of the analysis in Gill, the Court in Anderson went on to state as follows: In this case, Mr.

Anderson submits that, in the circumstances, to comply with the principles of fundamental justice, his aboriginal statusmust be factored into the Crown’s decision to exercise its discretion to seek a mandatory minimum sentence. He points to Parliament’spolicy on sentencing evidenced by

Section 718.2(

e) of the Criminal Code and the analytical approach endorsed by the Supreme Court of Canada, particularly in R. v. Ipeelee and R. v. Gladue. The importance of giving effect to

Section 718.2(

e) of the Code is discussed in Ipeelee. While the analysis was directed to the duty ofthe sentencing judges, when the Criminal Code grants the Crown discretion which will have the effect of limiting the judge’s options indetermining a fit sentence, the considerations set out in Ipeelee have application, by extension, to the Crown. In Ipeelee LeBel reiterated the rationale for the requirement to consider an offender’s aboriginal status: ...To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and

how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case- specific information presented by counsel. Counsel have a duty to bring that individualized information before the Court in every case, unless the offender expressly waives his right to have it considered. ... LeBel, J. commented on the purpose of

Section 718.2(

e) and the methodology set out in Gladue , summarizing: ...The methodology set out by this Court in Gladue is designed to focus on those unique circumstances of an Aboriginal offender which could reasonably and justifiably impact on the sentence imposed. Gladue directs sentencing judges to consider: (1) the unique systemic and background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his particular Aboriginal heritage or connection. Both sets of circumstances bear on the ultimate question of what is a fit and proper sentence. This approach to the Crown’s responsibility in the exercise of its discretion to rely on a

Section 727 Notice is consistent with the principles of fundamental justice under

Section 7 of the Charter . As noted above, those principles will be infringed if the Crown’s decision to rely on the

Section 727 Notice “operates in a manner that renders the sentencing proceedings fundamentally unfair”. (Gill, at paragraph 59) To avoid such fundamental unfairness, applying the principles discussed in Ipeelee and Gladue , it is necessary for the Crown to consider the offender’s aboriginal status in determining whether to request a mandatory minimum sentence of imprisonment. This same principle, enunciated in Gill and applied to Aboriginal offenders in Anderson , was also set down by the Ontario Court of Appeal in United States v. Leonard .

In Leonard , the Court was dealing with the issue of a prosecutor’s discretion to allow charges to proceed in Canada or in the United States and whether Gladue factors were required to be considered in the exercise of that discretion, all in the context of extradition proceedings. The principles in Leonard , although in the context of an extradition proceeding, are equally applicable in this context.

In dealing with the exercise of discretion by prosecutors in circumstances where the offender is an Aboriginal, Justice Sharp stated as follows: The jurisprudence that I have already reviewed indicates that the Gladue factors are not limited to criminal sentencing but they should be considered by all “decision makers who have the power to influence the treatment of Aboriginal offenders in the justice system” ( Gladue at paragraph 65 ) whenever an Aboriginal person’s liberty is at stake in criminal and related proceedings. ...

The sound exercise of prosecutorial discretion is fundamental to the fair administration of criminal justice. The decisions of prosecutors have enormous implications for accused persons and for the justice system. ...Given the central importance of prosecutorial discretion to the administration of Canadian justice and to the extradition process, I cannot accept the proposition that the Gladue principles have no bearing on its exercise. In the course of its submissions on whether the Crown’s exercise of discretion in filing the Notice does not violate

Section 7, the Crown indicated that the Gladue factors were taken into account and that the consideration of those factors resulted in the Crown’s position for a period of incarceration less than what it might otherwise have sought in the absence of the consideration of the Gladue factors. At the time the Crown exercised its discretion and filed the Notice however, the Crown knew nothing more than that Mr. Stone is an Aboriginal person. While the Crown would have been aware of the various systemic and background factors of which a court will take judicial notice, that is only one part of the equation.

What the Crown had no knowledge of however was the impact of those factors on the accused. That is the second part of the equation in Gladue that requires that particular attention be paid to his circumstances as an

Aboriginal offender. Mr. Stone’s unique circumstances were to be flushed out in a Gladue report and the proper consideration of the Gladue factors requires that the Crown’s decision regarding the Notice be deferred until after all of those circumstances are made known to it. In this case that was to be done through the preparation of a Gladue report. Knowing that a report was forthcoming, there was no prejudice to the Crown to await the preparation of that report before making a decision with respect to the exercise of its discretion. The exercise of the Crown’s discretion in the manner here constitutes a violation of

Section 7 of the Charter as it does not demonstrate that proper consideration was given to the Gladue principles. As already stated, the Gladue principles are more than the mere acknowledgement of an offender’s Aboriginal status and the existence of background and systemic factors unique to all Aboriginals. The Gladue factors also include the unique circumstances that are particular of the Aboriginal offender. In coming to this conclusion I am not imposing on the Crown the same duty that is imposed on a court in passing sentence on Aboriginal people.

What is required however is that the Gladue principles in their entirety be understood and applied. Kakekegamic stands for the principle that the Gladue principles are not to be applied in a vacuum and that more than a simple understanding of an offender’s Aboriginal heritage is required. Quoting Justice LaForme at paragraph 54: I agree that this is not a case where it can be said that counsel, or the trial judge, were wholly indifferent to the Aboriginal context.

There was, as noted, some references made to the fact that he was Aboriginal, and that he grew up in an environment of alcohol abuse on his First Nation. In my view, rather than accepting this information as satisfying the requirements of Gladue - if that is what occurred – it should have signalled to those involved a possible need for further inquiry. At the point where the Crown turned its mind to the Gladue principles it did so knowing nothing more than that Mr. Stone is an Aboriginal.

Accordingly, the consideration of the Gladue principles in determining whether to rely upon the Notice was done in an incomplete way, and a way that is contrary to the principles of fundamental justice, thus violating

Section 7 of the Charter . Accordingly, it is appropriate that the Notice be set aside. What then is a fit sentence? Mr. Stone is a member of the Aamjiwnaang First Nation. Like many first nations people, he has been directly impacted by the residential school system. Mr. Stone’s father attended a residential school in Mount Elgin. His mother, born in the State of Michigan, likely attended a similar facility in that state. The effects of the residential schools are well known and it is those effects, in a general sense, that a court can take judicial notice of. Mr.

Stone’s own unique circumstances are detailed in the Gladue report. His home environment had two predominant factors, alcohol and violence. The abuse of alcohol by the parents was passed onto the children. At page 20 of the Gladue report, Mr. Stone indicated as follows: One by one he started beating my brothers. The way I would see it, he’d beat them, they’d move out and be gone. I’d always wonder when it’s going to be my turn. I was scared. I never got proper direction. I always needed direction to do stuff. I was lost without direction. There was a lot of drinking back then, a lot. My brothers always drank.

They always drank beer or whiskey. Mom drank wine. There was a lot of tension in the house all the time. I couldn’t talk for fear of explosion. I think my whole family was alcoholic. My feelings were numb back then. I had four feelings, mad, glad, happy or sad; mostly sad or angry. Mr. Stone’s descent into alcohol started at age 10 and by age 15 he considered himself an alcoholic. In addition to alcohol, Mr. Stone, at around age 11 or 12, began sniffing solvents such as nail polish remover and glue. By age 13 he was smoking cigarettes and had his first experience with marihuana.

That drug use expanded to include LSD, pills and THC, generally combined with alcohol. This was a pattern of abuse that continued through high school. Not surprisingly, that combination of substance abuse led Mr. Stone into conflict with the law. It would seem he sought out that conflict as a means of escape. At page 25 of the report he states as follows:

I remember thinking the only way out (from the parent’s home) was jail. I thought jail would be better. I started getting into trouble with the law. In spite of the substance abuse, and limited education referred to in the Gladue report, Mr. Stone was able to find and maintain employment. Realizing the need for an education for employment purposes, Mr. Stone obtained his high school diploma through the Adult Learning Centre. It seems he was able to maintain his sobriety to the extent necessary to keep a job. Over time, the frequency of drinking, it seems, diminished but the abuse of alcohol did not.

When drinking occurred, it meant getting drunk. Mr. Stone’s criminal record seemingly reflects the problem with alcohol, including five impaired driving convictions over a period of 24 years. Over that period of time there were several attempts at breaking the addiction; Brentwood in 1986 and a residential treatment facility in New Mexico in 1991. Mr. Stone joined Alcoholics Anonymous for a period as well, but his presence in a community where so many others abused alcohol made a life of sobriety difficult, if not impossible to maintain given his own background.

Notwithstanding that background and the pattern of criminal activity, there is a significant gap in the record. The break in the record between 2001 and these offences is indicative of a number of things: the existence of steady and stable employment, a desire to change, a willingness to accept treatment, and a stable relationship. This most recent offence coincides somewhat with the loss of employment as well as the effects of a stroke that have limited his employment opportunities.

Given the criminal record, which also includes two convictions for failing to provide a breath sample, two convictions for drive while disqualified and two convictions for dangerous driving, notwithstanding the break in that record, the principles of denunciation and deterrence remain as significant factors in the consideration of a sentence. A custodial sentence in a jail setting is still widely accepted as the most effective way of addressing the principles of denunciation and deterrence. Is there still a place for a restorative justice sentence? In this regard, Justice Watt’s decision in R. v. Jacko

(2010) ONCA 452 is a helpful starting point. The issue before the Court was the fitness of a four year penitentiary sentence imposed on two youthful Aboriginals who had been convicted of a home invasion involving violence, threats and the use of a weapon. One of the Appellants, Jacko, had undertaken significant steps at rehabilitation between the time of his arrest and the time that the four year penitentiary sentence was imposed. The other Appellant had taken no such steps.

In reaching the conclusion that a conditional sentence was appropriate for Jacko, Justice Watt stated as follows beginning at paragraph 85: But denunciation and deterrence are not the only sentencing objectives at work here. Restorative justice sentencing objectives are of critical importance in the circumstances. They include assistance in rehabilitation, providing reparations for harm done to the victims and to the community, promoting a sense of responsibility in offenders and an acknowledgement by offenders about the harm their conduct has done to the victims and to their community.

In cases such as these, we must do more than simply acknowledge restorative sentencing objectives and note approvingly the rehabilitative efforts of those convicted. They must have some tangible impact on the length, nature and venue of the sentence imposed. Is a conditional sentence appropriate here? Except for those offences which are specifically excluded from the imposition of a conditional sentence by operation of

Section 742.1, there are three preconditions to the imposition of such a sentence:

1. the sentence to be imposed is less than two years; 2. service of the sentence in the community would not endanger the safety of the community; and 3. service in the community would be consistent with the fundamental purposes and principles of sentencing set out in

Section 718 to 718.2. The number of prior offences and the repetition of them would on the face of it suggest Mr. Stone is an ongoing danger to the safety of the community. The gap in the record however is significant. The last conviction was in 2001 and these offences occurred in 2012, a gap of 11 years. It is not the case that Mr. Stone was abstinent over that period of time, but for whatever reason, his alcohol consumption did not bring him into conflict with the law. Nor does it appear that it interfered with other aspects of his life as he was able to maintain gainful employment. Mr.

Stone had undergone treatment on at least two occasions before 2001 and it is likely the treatment that accounts for what appears to be an ability on his part to control drinking. It is also of some significance that in 2009, he was granted a pardon. A pardon does not occur simply with the passage of time. The Parole Board is required by statute to make inquiries regarding an offender prior to granting a pardon. The fact of a pardon is itself statutory proof that in the intervening years between the last offence and the pardon, Mr. Stone was of good conduct.

In other words during those years he would not be seen to pose a danger to the safety of the community. Nonetheless, he has committed these offences which clearly raise a concern whether he poses a risk to the community. The fact that Mr. Stone continues to undertake counselling through Mr. Maness, has made progress through that counselling, is involved in other counselling and is prepared once again to take the more intensive counselling, is a significant step in reducing the danger to the community.

Additionally, his behaviour while on bail awaiting disposition of these matters is also indicative of a lack of danger posed to the community while he is part of that community. As for being consistent with the purposes and principles of sentencing, I believe that a conditional sentence is consistent with them in light of the significant gap and the efforts at rehabilitation both in the past as well as the ongoing ones and the ones planned for the future.

The most intensive efforts at rehabilitation occurred prior to the commission of these offences which might lead to the conclusion that given the offences, rehabilitation has not been successful. However, as indicated elsewhere, the 11 year gap is indicative of some success at rehabilitation and that strongly suggests that Mr. Stone remains a good candidate. In the interval, he has continued to involve himself in counselling and is making progress. Additionally, he has developed a plan as reflected in the Gladue report for follow-up residential treatment through the Kiikeewannikaan Healing Lodge.

While denunciation and deterrence are significant factors, so too is the restorative justice aspect. For these reasons, I can conclude that a conditional sentence is not inconsistent with the purposes and principles of sentencing. Furthermore, it cannot be lost sight of that conditional sentences are, if properly structured, a deterrent sentence. A conditional sentence is the only effective way of striking a balance between those three principles of sentencing while still giving effect to each of them. It is also significant to note that Mr.

Stone has a plan to address not only the ongoing substance abuse matter, but the underlying factors as well. He is prepared to participate again in a residential program for substance abuse which will also focus on unresolved issues in his life which stem from the dysfunction in his family apparent from a review of the Gladue report. Other counselling programs are also available to Mr. Stone, some of which he has undertaken and all of which he has indicated a willingness to continue to participate in.

The most appropriate place for resolving those issues is in the community given the virtual absence of any meaningful program in many if not all provincial institutions. Taking all of those factors into account then, I am of the view that a 12 month conditional sentence for Mr. Stone is appropriate. With respect to the terms of that conditional sentence order, in addition to the statutory terms Mr. Stone, the following are the conditions that you need to abide by for the next 12 months. You are to abstain absolutely from the purchase, possession, consumption of alcohol or other intoxicating substances.

You are not to permit alcohol to be in your residence. You are to abstain absolutely from the purchase, possession, consumption of drugs except in accordance with a medical prescription or any drug paraphernalia including but not limited to rolling papers, weigh scales, smoking devices and the like. You

are to attend and comply with treatment for substance abuse and any other matters as directed by your supervisor and follow all of the directions of the supervisor in that regard. You are to attend and actively participate in such rehabilitative programs at the Kiikeewannikaan Healing Lodge or such other facility as may be directed by your supervisor. Obviously in this regard you are going to have to report to a supervisor in the probation office today and after today as directed by that supervisor. You are to continue your involvement with the mental health worker at the Aamjiwnaang Health Centre.

You are to continue to participate in the Red Path Program offered on the Aamjiwnaang First Nation. You are to continue your involvement in one-on-one counselling with Mr. Robin Maness as directed by your supervisor. In many instances there would be a period of house arrest. I am tempering that somewhat to impose a curfew that will largely resemble a period of house arrest but will allow somewhat more flexibility. I do it for this reason. It is clear from the Gladue report that there are some significant health issues that Mr.

Stone is suffering from, largely as a result of a stroke and I am of the view that a strict period of house arrest would be unnecessarily burdensome and punitive but nonetheless there need to be restrictions on Mr. Stone’s liberty. That can be accomplished I believe through a strict curfew. So you are bound by a curfew then to be in your residence each day for the first six months between 4 p.m. in the afternoon and 12 noon and for the remaining six months a curfew between eight p.m. and eight a.m. unless otherwise varied in writing by your supervisor.

Exceptions to that curfew are the following: • attending for any medical or dental appointments approved in advance by your supervisor; • attending for any medical or dental emergencies; • attending for any court-ordered assessment or rehabilitative programming; • attending for any job search, employment search but then in accordance with a

schedule provided in advance to your supervisor and approved by the supervisor; and • for any other purposes permitted in writing by your supervisor. You are required to present yourself at your residence by phone or at the door when required by a peace officer, probation officer or supervisor. You are to permit a peace officer or your supervisor entry into your residence at all times to ensure compliance with the terms of the order. You need to carry a copy of this order on your person at all times while you are away from your residence.

You will have to provide your supervisor with any necessary consents in order to enable the supervisor to confirm your participation in the various programming directed. There are a number of terms that I just imposed Mr. Stone. Do you understand the terms that I have imposed on you? MR. STONE: Yes, yes Your Honour. THE COURT: Those terms are all mandatory terms. They need to be followed precisely.

The failure to follow those terms puts you in violation of the order which subjects you to arrest and detention in a jail facility in order to determine whether continuing to serve this sentence in the community is appropriate or not. There is a presumption at law that people who violate the terms of a community service order or a conditional sentence order should serve the balance of that sentence in a custodial facility simply called jail. That needs to be understood clearly. This order will be followed by a period of probation in effect for 12 months.

The terms of the probation order will require that you report to a probation officer within two days of the completion of the sentence, after that as directed by the probation officer. You are not to have in your possession substances under the Controlled Drugs and Substances Act except for those prescribed. You are not to have in your possession or consume any alcohol. You will have to take any counselling for substance abuse and other matters as directed by the probation officer. You will have to continue your involvement with the Aamjiwnaang Health Centre, with the Red Path program and Mr.

Robin Maness if directed to do so by your probation officer. Understand the terms of the probation order? MR. STONE: Yes, sir. THE COURT: Likewise, the failure to follow any of those terms puts you in violation of that order and subjects you to further criminal proceeding. I believe that the only thing, well it was dealt with the last time. It was a driving prohibition opposed for three years.

MS. LASHA: Was it – I’m sorry, how many years? THE COURT: Three. MS. LASHA: Three years. THE COURT: I believe that deals with all remaining matters with Mr. Stone. MR. GUGGISBERG: Thank you, sir. THE COURT: That conditional sentence order I can assure you Mr. Stone will take some considerable time to prepare. It’s unlikely it’s going to be available for your signature until sometime later this afternoon but you will remain or you have to remain, you will have to remain in the building and wait to sign that order before you can leave. Okay? MR. STONE: Okay.

THE COURT: It’ll be down in the court office on the first floor. MR. GUGGISBERG: Thank you. MR. STONE: Okay. Thank you. Form 2 Certificate of Transcript Evidence Act , Subsection 5(2) I, Annie Sheehan certify that this document is a true and accurate transcript of the recording of R. v. Robert Stone, in the Ontario Court of Justice, held at 700 N. Christina St., Sarnia, Ontario taken from Recording No. 1711-CrtRm301-20130829-112037-6-Hornblm which has been certified in Form 1. Date Annie Sheehan